Order 9

Order Details: COPY OF ORDER
Pdf Text: 14CC NI ACT/8531/2024
CNR NO.:-DLCT020261102024
Ankush Jain Vs. Shubham Goswami
Argued by:
Sh. Nikhil Yadav, Ld. Counsel for complainant
Ms. Priya Ranjan Roy, Ld. counsel for accused
ORDER ON DISCHARGE
1. Vide this Order, I shall dispose of the application filed on
behalf of the accused, seeking discharge of the accused under
Section 268 of Bharatiya Nagarik Suraksha Sanhita
(hereinafter BNSS).
2. Ld. Counsel on behalf of accused argued that the
firstly, the
cheque in question was handed over to Sh. Ankush Jain S/O
Ashok Jain as Rs 2 Lacs was borrowed from him and in lieu,
loan agreement dated 20.02.2023 was entered with Sh.
Ankush Jain and not the complainant, who was merely a
witness to the transaction.
Secondly, no documentary
evidence is filed on record to show alleged cash payment of
Rs 12 Lakhs to the accused and the entire transaction with the
complainant is disputed. Therefore, the complainant has
misled and played fraud upon the Court into taking
cognizance against the accused and issuing summons in
furtherance of the same as the complainant has filed the
present case.
3. Per-contra, Ld. Counsel for the complainant did not wish to
file a formal Reply and opposed the submissions on the
ground that the present application is not maintainable at its
threshold as the provision is applicable to warrants triable
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cases. Further, triable issues have been raised by the accused,
which do not warrant mini trial at this stage.
4. Arguments heard. Record perused.
5. As to the primary issue of whether present application filed on
08.10.2025 application is maintainable in a case which was
pending as on 01.07.2024, language of the provision under
Section 531 of BNSS is self-explanatory and does not require
separate adjudication.
6. Furthermore, it is trite principle of judicial interpretation that
the principle of ex-post facto laws does not apply to
procedural rights and even otherwise, procedural rights are not
vested rights. It is for this reason that procedural laws are
generally deemed to be retrospective, unless explicitly
legislated otherwise. In the present case, there is no question
of any retrospective application of BNSS as the application at
hand is a new ‘application’ within the meaning of Section
531(2)(a) of BNSS.
7. It is noteworthy that the application under consideration was
not pending at the time of enactment of new Sanhita as on
01.07.2024 and has been filed later as a fresh application.
Thus, it not be covered under Section 531(2)(a) of BNSS
which provides for the continuity of the old law. Once it is out
of purview of the old law, it could only be considered under
the new Sanhita owing to the repeal of the old law.
8. Even otherwise, it does not cause any prejudice to any side if
the Court applies its mind before framing of notice.
Contrarily, the prejudice to the accused is on the higher side as
he would be deprived of a remedy merely because the
procedural law earlier could not contemplate the necessity of a
provision akin BNSS. Thus, I find that the present application
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is maintainable. I may, accordingly, proceed to decide the
same on its merits.
9. Briefly, the case of the complainant is that accused
approached him for financial aid of Rs 15 Lakhs in June 2022
for purchase of property bearing no. 3316, Arya Pura,
opposite Baba Balak Nath Mandir, North Delhi-110007 and
accordingly, complainant advanced Rs 12 Lakhs in July 2022
repayable within one year. And impugned cheque was issued
against the said friendly loan.
10. The main contention of ld. counsel for the accused that the
loan transaction was with Sh. Ankush Jain and not with the
complainant cannot be adjudicated at the stage of framing of
notice as this Court cannot arrive at a finding of relevance of
loan agreement (Annexure A) qua the transaction in question.
Prima facie, the identity of the complainant in being disputed
only the address and not his father’s name, which is duly
admitted by Ld. counsel for accused during arguments.
Furthermore, the Court cannot examine the actual nature or
existence of any debt due and payable by accused at the stage
of framing of notice, as the statutory presumption under
Section 139 of NI Act categorically requires the Court to
presume the existence of a debt or liability as soon as the
execution of cheque is alleged.
11. The accused will get an opportunity to deny either execution
and the circumstances therein for the delivery of the impugned
cheques, while recording his plea of defence at the time of
framing of the notice and he would also get an opportunity to
rebut the statutory presumption during the trial. In absence of
evidence being led by the accused or in absence of any
rebuttal by the accused at an appropriate stage, the statutory
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presumption under Section 139 of NI Act cannot be discarded
at the stage of notice. Thus, it could not be said that the
accusations against accused warrant interference at this stage.
12. The contentions raised by accused reveal triable issues and
they could only be determined after trial. The Judgments
relied by the accused are distinguishable on facts as well as
the law applicable Therefore, notice is directed to be served
upon accused.
13. The grounds urged by the counsel for the accused do not fall
within the realm of the settled rules of law. As such, the
application stands dismissed.
14. However, it is clarified that nothing expressed herein shall
tantamount to any final opinion on merits of the case.
15. Application stands disposed of.
(Ravisha Sidana)
JMFC, NI Act-06,
Central District, THC
11.02.2026
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